Diego Garcia Military Base and British Indian Ocean Territory Bill

1. This clause sets out when the main provisions in the Bill come into force. Clauses 2 to 4, which deal with dissolution of BIOT, the continued administration of Diego Garcia, and citizenship of persons connected to the Chagos Archipelago, will come into force when the Treaty comes into force.

2. Entry into force of the Treaty is defined in Article 18 of the Treaty, as being the first day of the first month following the date of receipt of the later note by which Mauritius and the UK notify each other that they have completed their respective internal requirements and procedures necessary.

3. Under subsection (4), the Secretary of State will publish in the London Gazette notice of when the Treaty, and therefore clauses 2, 3 and 4, comes into force.

4. Clause 6 (described below) deals with the commencement of the other clauses in the Bill.

5. This clause provides for the dissolution of BIOT. It brings to an end His Majesty's sovereignty over the area which currently comprises BIOT. This addresses Article 1 of the Treaty, which states that the Parties agree that Mauritius is sovereign over the Chagos Archipelago, including Diego Garcia.

6. Subsection (2)(a) revokes the British Indian Ocean Territory (Constitution) Order 2004, which currently provides the constitution of BIOT.

7. As BIOT will no longer exist as a British overseas territory, susbection 2(2)(b) removes reference to BIOT from Schedule 6 to the British Nationality Act 1981. The Interpretation Act 1978 defines the term "British overseas territory" across the statute-book by reference to that Schedule.

8. This clause provides for the continued administration of Diego Garcia by the United Kingdom, in accordance with the Treaty and its provisions on UK jurisdiction and control, through a partial saving of existing law. Changes to the law will be needed to reflect the new status of Diego Garcia (including to ensure that the law respects the limitations in the Treaty). Through this clause, the Bill establishes a default position of continuity in the law of and relating to Diego Garcia, to avoid legal gaps on entry into force of the Treaty. Necessary changes to the law will then be made under the prerogative, the powers conferred by clause 5, or other existing statutory powers in the relevant jurisdictions.

9. Subsection (1) and (2) set out a general saving, preserving all laws of or relating to BIOT as laws of or relating to Diego Garcia.

10. Subsection (2) applies to any legislation or rule of law of England, Wales, Scotland, Northern Ireland and any of the Crown Dependencies or the Overseas Territories which currently relates to BIOT.

11. His Majesty in Council has "plenary", i.e. full, power to legislate for BIOT. Subsection (3) clarifies that the effect of subsections (1) and (2) is to preserve that power as a prerogative power to legislate for Diego Garcia.

12. Subsection (4)(a) relates to Schedule 6 to the British Nationality Act 1981 ("the 1981 Act") which lists the British overseas territories. As noted above, the definition of "British overseas territory" provided by the Interpretation Act 1978 is by reference to the 1981 Act. While clause 2(2)(b) removes BIOT from this list, the purpose of subsection(4)(a) is to clarify that, where a law currently extends to BIOT because BIOT is an overseas territory listed in Schedule 6 to the 1981 Act, subsection (1) still preserves this law as a law of Diego Garcia. Similarly, where a law relates to BIOT because BIOT is an overseas territory listed in Schedule 6, subsection (2) preserves this as a law relating to Diego Garcia, even though Diego Garcia will not be listed as an overseas territory.

13. Subsection (4)(b) has the effect that laws saved by subsection (1) or (2) can be amended at or after commencement in the usual way, notwithstanding that saving.

14. Subsection (5) provides that, despite the revocation of the BIOT (Constitution) Order 2004, any legislation made under that Order will continue to have effect by virtue of the saving provision in susbection(1). This includes legislation made by the Commissioner for BIOT under section 3 of that Order, which is therefore preserved as the law of Diego Garcia.

15. Subsection (6) provides that, throughout the whole Bill, the term "Diego Garcia" includes the whole area for which the UK can legislate under the Treaty. See in particular Article 19 and Annex 2 of the Treaty in this respect.

16. This clause makes provision about British nationality, specifically about the entitlement to British and British overseas territory citizenship of persons who were born in BIOT and their descendants ("Chagossians").

17. British Overseas Territories citizenship ("BOTC") is a form of British nationality held through a close and continuing connection with a British overseas territory. A British overseas territories citizen can hold a British passport and get consular assistance and protection from UK diplomatic posts. The difference between British citizenship and BOTC is the right of abode in the UK. All British citizens have the right of abode within the UK, meaning they are completely free from immigration control and can live and work in the UK permanently, without needing to seek official permission from the Home Office. However, BOTC does not directly provide the right of abode.

18. The Bill will not affect either British citizenship or BOTC acquired before commencement, nor will it affect current routes to British citizenship, with their existing expiry dates. However, after BIOT ceases to be a British overseas territory, no-one will be entitled to acquire BOTC on the basis of a connection to BIOT or the Chagos Archipelago.

19. Section 17H currently entitles a person to BOTC if they are the direct descendant of a person who was a citizen of the UK and Colonies because they were born in BIOT (or were born before 1965 on the islands which subsequently became BIOT). This entitlement applies only to individuals who have never previously held BOTC or a British Dependent Territories citizenship, and is time limited: applications must be made within a certain period from the date on which section 17H came into force, which was 23 November 2022.

20. Under section 4K of the 1981 Act, a person who is entitled to hold BOTC under section 17H is entitled to be registered as a British citizen (subject to the exceptions set out in the 1981 Act).

21. Subsections (4), (5) and (6) amend the 1981 Act by inserting new sections 4KA and 25A, and omitting section 17H, of that Act.

22. The omission of section 17H, combined with the new section 25A, means that after the commencement of this clause, a person will no longer be entitled to claim BOTC on the basis of descent from a person born on the Chagos Archipelago.

23. The new section 4KA of the 1981 Act will provide that a Chagossian who was previously eligible for British citizenship by virtue of section 17H of the 1981 Act in combination with section 4K of that Act ("the s. 17H route") will be eligible to claim such citizenship until the original expiry of the s. 17H route, as applicable to them. This means, for example, that after clause 4 commences, a person who was 18 or over on 23 November 2022, who wishes to apply for British citizenship under section 4KA, must do so before 23 November 2027.

24. Any Chagossians who are born between the date of entry into force of the Treaty and the expiry of the s17H route who would have been eligible for that route continue to be eligible to apply for British citizenship (but not BOTC).

25. Subsection (8) creates a transitional provision in relation to applications for British citizenship or BOTC which have been made before the day on which commencement of this clause occurs, but have not been determined at that point. These applications will be dealt with on the basis of section 17H and section 4K as they applied before commencement of this clause.

26. Subsection (9) provides that British citizenship and BOTC acquired before the entry into force of the Treaty are not affected by anything in the Bill.

27. Clause 4(2) makes it clear that, in recognition of the changes made by the remainder of the clause, the general continuity proposition in clause 3(2) does not apply to the 1981 Act itself. It will, however, apply to other legislation that currently applies to BIOT by virtue of its inclusion in the list of British overseas territories in Schedule 6 to the 1981 Act (as explained in relation to clause 3(4)(a)).

28. Clause 5 confers a power to implement the Treaty and make provision resulting from it in domestic law.

29. Subsection (1) gives His Majesty the power to make an Order in Council making any provision which he considers appropriate as a result of the Treaty. This might include, for example, provision directly implementing the Treaty, or provision which needs to be made as a result of the Treaty, to reflect the fact that BIOT no longer exists as an overseas territory. Orders in Council under clause 5(1) may also make consequential, supplementary, transitional etc. provision.

30. This power includes (under subsection (2)) a power to amend, repeal or revoke any existing legislation of any part of the United Kingdom, the Crown Dependencies or the Overseas Territories. Orders in Council under clause 5 may amend legislation which forms part of the law of Diego Garcia pursuant to the general saving made by clause 3.

31. The Parliamentary procedures applying to Orders in Council made using this power will depend on their content. Orders in Council under Clause 5 are not subject to any Parliamentary procedure, unless they amend, repeal or revoke any Act of Parliament or provision made under an Act of Parliament by statutory instrument, in which case they will be subject to the negative procedure.

32. Subsection (4) and (6) together provide that the statutory power conferred by clause 5 does not limit any of His Majesty's powers under his prerogative. This includes the prerogative power to legislate for Diego Garcia which is preserved by virtue of clause 3. Subsection (5) explains how the use of those powers after entry into force of the Treaty is to be treated under the Foreign Jurisdiction Act 1890 and the Statutory Instruments Act 1946. Part of the intention is to maintain a clear distinction between prerogative and statutory orders, notwithstanding the fact that the Bill clarifies or confirms certain aspects of the prerogative as forming part of the new legal framework for Diego Garcia.

33. Subsection (6) makes it clear that His Majesty's prerogative power to legislate for British Indian Ocean Territory may be used after this clause has come into force, to make laws which take effect at or after entry into force of the Treaty, which will be saved as laws of Diego Garcia. This is to avoid any doubt as to the ability under the prerogative to legislate in a way that anticipates the new status of Diego Garcia and can take effect together with the change in status.

34. Clause 6 makes provision for clause 4 of the Bill to come into force on the day which the Bill is passed.

35. Subsection (2) is self-explanatory.